The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,

Meeting on 30 March 1989

Adopts the following:

Decision on admissibility

1. The authors of the communication (initial letter dated 14 January 1988; further
submission dated 29 December 1988) are B. d. B., G. B., C. J. K. and L. P. M. W., four
Dutch citizens. They claim to be the victims of a violation by the Government of the
Netherlands of articles 14, paragraph 1, and 26 of the International Covenant on Civil and
Political Rights. They are represented by counsel.

2.1 The authors are joint owners of the Teldersweg physiotherapy practice in Rotterdam.
They allege that they have been discriminated against by the Industrial Insurance Board
for Health and for Mental and Social Interests (hereafter BVG) and the Central Appeals
Board (Centtale Raad van Beroep) because of the way in which social security contributions
payable by them are regulated under Netherlands social security legislation.

2.2 The authors state that the BVG, as the executive organ of the social security
insurance legislation, has the task of assessing social insurance claims and of fixing the
contributions payable by employers to finance these employees' insurance schemes. Until
1984, the BVG held the view that part-time physiotherapists working on the basis of a
collaboration contract with a practitioner were not in employment; there was thus no
question of compulsory insurance for these more or less independent collaborators within
the framework of the said employees' insurance scheme.

2.3 This situation changed on 19 April 1983, when the Central Appeals Board ruled
contrary to what the BVG had previously accepted, that part-time physiotherapists working
on an invoicing basis were in fact working in such a dependent socio-economic position vis-à-vis
the owner or owners of the practice that their work status was socially comparable to
employment and had therefore to be regarded as such in the framework of social security
insurance legislation. On the basis of this judgement, the BVG informed the national
professional organizations of physiotherapists that part-time physiotherapists working on
an invoicing basis henceforth would have to be insured and that contributions due would
have to be paid by the owner of a physiotherapy practice as if he were an employer. In its
circular, the BVG announced that contributions due would be collected from January 1984,
on the understanding that those required to pay the contributions would send their names
to the BVG before 1 January 1985. The collection of contributions for the years prior to
1984 would then be waived.

2.4 Despite the BVG view that, from 1984 onwards, there was no longer any question of
such a special situation in respect of the obligation for owners of physiotherapy
practices to pay contributions, the authors maintain that physiotherapists are still
treated differently with regard to the date of commencement of the obligation to
contribute. Thus, it has become apparent that those physiotherapy practices which, at an
earlier stage, were unambiguously informed in writing by the association that there was no
obligation to contribute, were regarded as liable to pay the first contribution in 1986,
whereas practices that had not received a letter sent directly by the BVG, in which they
were informed that there was no such obligation, were required to pay contributions
retroactively to January 1984.

2.5 As soon as the complainants learned that, in the former case, the requirement to
pay their contributions could have begun in 1986 and thus did not have retroactive effect
to 1 January 1984, they invoked the principle of equality before the law, by means of the
appeals procedure then prevailing in the Central Appeals board. They argued that the
situation in their practice had not been essentially different from that in other
practices which had learned directly from the BVG that no insurance obligation was
required with regard to their part-time physiotherapists. The part-time physiotherapist
who collaborated with the authors has also working on an invoicing basis, as others who
collaborated with practices that, before 1983, had learned directly from the BVG that
there would be no question of an insurance obligation.

2.6 Despite the invocation of the principle of equality before the law, the Central
Appeals Board held, in its final judgment in the case on 19 August 1987, that the decision
by the BVG to demand contributions from the complainants with retroactive effect to 1984
was based on legal rules of compulsory nature which could not or must not be tested
against general principles of law.

2.7 To the authors, the Central Appeals Board thereby implicitly concluded that the
acknowledged difference in treatment in the manner of demands for contributions between
various physiotherapy practices is in accordance with law. The authors point to what they
consider an inconsistency in the Central Appeals Board's judgement. On the one hand, the
Board appears to take the view that the application of compulsory legal rules cannot or
must not be tested against general principles of law; on the other hand, it appears from
established case-law that such rules must not be applied if they are in conflict with the
principle of confidence in the law, i.e. the principle of the certainty of the law. The
authors question why owners of physiotherapy practices who were not directly informed by
the BVG in the past that part-time physiotherapists co-operating with them were not
subject to social security contributions should be subjected to different and less
favourable treatment with respect to contributions due after 1984 than those practitioners
who had received such direct information.

2.8 The authors claim that since the principle of confidence in the law can, under
certain circumstances, prevent the application of compulsory legal rules, it is all the
more surprising that this does not apply to the principle of equality before the law,
enshrined in article 1 of the Netherlands Constitution and article 26 of the Covenant.
They refer to the decision adopted by the Human Rights Committee o 9 April 1987 in
communication No. 172/1984, which states, inter alia, that article 26 of the
Covenant is not limited to the civil and political rights provided for in the Covenant but
also applies to social insurance law. Concerning the differences noted above in the
treatment of owners of physiotherapy practices the authors allege that it is possible to
speak of a violation of article 26 in conjunction with article 14, paragraph 1, of the
Covenant. They contend that the distinction made by the BVG in practice is an arbitrary
one.

3. By decision dated 15 March 1988, the Working Group of the Human Rights Committee
transmitted the communication to the State party under rule 91 of the Committee's
provisional rules of procedure, requesting information and observation relevant to the
question of the admissibility of the communication. By note date, 6 July 1988, the State
party requested an extension of three months for the submission of its observations.

4.1 In its submission under rule 91, dated 28 October 1988, the State party objects to
the admissibility of the communication on a number of grounds. Recapitulating the facts,
it points out that the alleged victims are joint owners of a physiotherapy practice where
a part-time physiotherapist worked on the basis of a co-operation contract as from 1982;
she was paid by invoice, worked more or less independently and was not insured as an
employee under social security legislation. The State party further indicates that there
are three social security insurance schemes: schemes paid out of public funds, national
insurance schemes and employee insurance schemes. Unlike the first two, employee insurance
schemes are only applicable where there is an employer/employee relationship. Both
employer and employee pay part of the employment insurance contribution, determined in
accordance with a standard formula. This contribution is calculated as a certain
percentage of the employee's income and is payable to the competent industrial insurance
board.

4.2 The State party explains that for the purpose of determining who, as an employee,
should pay employment insurance contributions, a broad definition of the term
"employment" is used. It is not confined to situations in which there is an
employment contract governed by civil law but also extends to co-operative relationships
that meet certain criteria defined by the relevant act of parliament or the executive
rules and regulations based on it; in accordance with these criteria, employment
relationships not governed by employment contracts can be equated with those that entail,
with all the relevant consequences concerning entitlement to benefits, an obligation to
pay contributions.

4.3 In the past it had been generally assumed that a physiotherapist working for
physiotherapy practice who was paid by invoice should not normally be regarded as being
employed by the practice. However, the Central Appeals Board took a different view in its
judgment of 19 April 1983. The BVG is entrusted with the implementation of social security
legislation with regard to employees in the health sector and must determine the social
insurance contributions of employers and employees for employee insurance schemes such as
medical insurance, disability insurance and unemployment insurance contributions. As from
1 January 1984, the BVG claimed these contributions from the applicants for the
aforementioned physiotherapist. The applicants did not agree that this date was correct
and contested the decision on the grounds, inter alia, that the principle of
equality had been violated because other physiotherapists had only been required to pay
contributions as from 1986. The court of first instance, the Board of Appeals and the
court of second and last instance, the Central Appeals Board, dismissed the case. The main
reason for the dismissal of the case was that peremptory statutory provisions had been
properly applied, that such provisions must always be applied unless there are special
circumstances, and that these were lacking in the authors' case.

4.4 With respect to the requirement of exhaustion of domestic remedies, the State party
acknowledges that the authors pursued legal proceedings up to the court of last instance.
It points out, however, that the authors did not invoke either article 26 or article 14,
paragraph 1, before the Board of Appeal and, on appeal, before the Central Appeals Board.
It was merely in a supplementary petition to the Central Appeals Board, dated 29 April
1987, that the principle of equality was also mentioned, if only in general terms and
without specific reference to provisions of domestic or international law. Nor were the
articles of the Covenant invoked by the authors in either of the judgements given in the
case. In these circumstances, the State party does not "consider it to be altogether
clear that the applicants nave exhausted domestic remedies, as they did not explicitly
invoke any provisions of the Covenant during domestic proceedings". The State party
requests the Committee to decide on whether and to what extent authors of a communication
must invoke the provisions of the Covenant purported to have been violated in the course
of domestic legal proceedings.

4.5 With respect to the alleged violations of article 14, paragraph 1, and article 26,
the State party contests that the actions complained of by the authors can be brought
within the scope of application of these provisions and thus considers the communication
to be inadmissible pursuant to articles 2 and 3 of the Optional Protocol. With respect to
article 14, paragraph 1, first sentence, it points out that article 14 is concerned with
procedural guarantees for trials and not with the substance of judgements handed down by
the courts. Individuals who believe that the law has been wrongly applied to them in the
Netherlands may seek redress through the courts. The rules governing appeals against
decisions under social security legislation are laid down in the Appeals Act of 1955. The
State party emphasizes that it has not been alleged that the Board of Appeal or the
Central Appeals Board failed to observe these rules, which are compatible with article 14,
and that there is no evidence that the boards failed to observe them.

4.6 With respect to the alleged violation of article 26, the State party questions the
authors' apparent assumption that article 26 also applies to the contributions that
employers and employees are required to make, and invites the Committee to give its
opinion on this question. It further indicates that the authors do not appear to have
complained about the substance of the statutory provisions concerning mandatory social
insurance but only about the fact that the BVG set 1 January 1984 as the date from which
contributions were payable. The issue thus is whether the application of a law which is
not in itself discriminatory and which the Central Appeals Board considers to have been
correct can run counter to article 26. Earlier communications concerning Netherlands
social security legislation submitted to the Committee a/related to
provisions laid down by an act of parliament which the authors deemed to be
discriminatory. The present communication, however, does not relate to the provision's
substance, which is neutral, but to the application of social security legislation by an
industrial insurance board. The State party invites the Committee to formulate its opinion
on this point and refers to the Committee's decision in communication No. 212/1986, where
it was stated, inter alia, that the scope of article 26 of the Covenant does not
extend to differences of results in the application of common rules in the allocation of
benefits. b/ This statement, according to the State party, should apply
all the more to situations in which social insurance contributions are determined by an
industrial insurance board.

4.7 The State party expresses doubts as to whether an action by an industrial insurance
board can be attributed to its State organs, in the sense that the State party could be
held liable for it under the Covenant or the Optional Protocol thereto. In this context,
it emphasizes that an industrial insurance board such as the BVG is not a State organ:
such boards are merely associations of employers and employees established for the
specific purpose of implementing social security legislation, and the management of such a
board consists exclusively of representatives of the employers' and employees'
organizations. Industrial insurance boards operate independently and there is no way in
which the State party's authorities could influence concrete decisions such as that
complained of by the authors.

5.1 Commenting on the State party's Observations, the authors, in a submission dated 29
December 1988, affirm that it was not necessary for them to invoke either the principle of
equality or article 26 of the Covenant in domestic proceedings. In Netherlands
administrative law, the principle of equality has traditionally been a legal standard
against which the courts test the administrative practices of governmental authorities.
They consider it to be unnecessary to invoke, in administrative procedures, sources of law
that embody the principle of equality, since the judge is bound to accept this principle
and should ex officio test the case against it. The fact that the contested
judgements do not refer to the provisions of the Covenant is, therefore, irrelevant.

5.2 With respect to the alleged violation of article 14, first sentence, of the
Covenant, the authors acknowledge that the provisions of article 14 contain further
guarantees intended to secure the conduct of a fair trial and add that they have no reason
to complain about the conduct of the judicial proceedings as such. They reiterate,
however, that the judicial review of general principles of justice in their case by the
Central Appeals Board was contradictory, and that the Board treated them differently from
others and, therefore, unequally.

5.3 The authors further reject the State party's contention that the communication
should be declared inadmissible because it was directed against discriminatory application
of legislation which in itself is neutral. They refer to the Committee's decision in
communication No. 172/1984 c/which stipulated, inter alia that
"article 26 is concerned with the obligations imposed on States in regard to their
legislation and the application thereof". With respect to the State party's argument
that because it left the implementation of some aspects of social security legislation to
industrial insurance boards and is therefore unable to exercise influence on concrete
decisions adopted by such boards, they argue that the mere inability to supervise the
implementation of social security legislation by industrial insurance boards cannot
detract from the fact that the State party is responsible for seeing to it that these
bodies charged with the implementation of the law perform their statutory assignments in
conformity with legal standards. Where loopholes become apparent, it is for the legislator
to eliminate them. Therefore, according to the authors, the State party should not be
allowed to claim that it cannot influence the decisions of bodies such as the BVG. Were
this to be allowed, it would be easy for States parties to undermine the "basic
rights" of their citizens. The authors conclude that in their case, the State party
seeks to deny its responsibility for the concrete application of social security
legislation by invoking a situation which it had created itself.

6.1 Before considering any claims contained in a communication, the Human Rights
Committee shall, in accordance with rule 87 of its provisional rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 The Committee has ascertained, as it is required to do under article 5, paragraph 2
(a), of the Optional Protocol, that the same matter is not being examined under another
procedure of international investigation or settlement.

6.3 With respect to the requirement of exhaustion of domestic remedies, the committee
has taken note of the State party's argument that it is doubtful whether the authors have
complied with article 5, paragraph 2 (b), of the Optional Protocol, given that they did
not invoke any provisions of the Covenant in the course of domestic proceedings. The
Committee observes that whereas authors must invoke the substantive rights contained in
the Covenant, they are not required, for purposes of the Optional Protocol, necessarily to
do so by reference to specific articles of the Covenant.

6.4 With regard to an alleged violation of article 14, paragraph 1, of the Covenant,
the Committee notes that while the authors have complained about the outcome of the
judicial proceedings, they acknowledge that procedural guarantees were observed in their
conduct. The Committee observes that article 14 of the covenant guarantees procedural
equality but cannot be interpreted as guaranteeing equality of results or absence of error
on the part of the competent tribunal. Thus, this aspect of the authors' communication
falls outside the scope of application of article 14 and is, therefore, inadmissible under
article 3 of the Optional Protocol.

6.5 With regard to an alleged violation of article 26, the Committee recalls that its
first sentence stipulates that "all persons are entitled without discrimination to
the equal protection of the law". In this connection, it observes that this provision
should be interpreted to cover not only entitlements which individuals entertain vis-à-vis
the State but also obligations assumed by them pursuant to law. Concerning the State
party's argument that the BVG is not a State organ and that the Government cannot
influence concrete decisions of industrial insurance boards, the Committee observes that a
State party is not relieved of its obligations under the Covenant when some of its
functions are delegated to other autonomous organs.

6.6 The authors complain about the application to them of legal rules of a compulsory
nature, which for unexplained reasons were allegedly not applied uniformly to some other
physiotherapy practices; regardless of whether the apparent non-application of the
compulsory rules on insurance contributions in other cases may have been right or wrong,
it has not been alleged that these rules were incorrectly applied to the authors following
the Central Appeals Board's ruling of 19 April 1983 that part-time physiotherapists were
to be deemed employees and that their employers were liable for social security
contributions; furthermore, the Committee is not competent to examine errors allegedly
committed in the application of laws concerning persons other than the authors of a
communication.

6.7 The Committee also recalls that article 26, second sentence, provides that the law
of States parties should "guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status". The Committee notes that the authors have not claimed that their different
treatment was attributable to their belonging to any identifiably distinct category which
could have exposed them to discrimination on account of any of the grounds enumerated or
"other status" referred to in article 26 of the Covenant. The Committee,
therefore, finds this aspect of the authors' communication to be inadmissible under
article 3 of the Optional Protocol.

7. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be communicated to the State party and to the authors.